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20 Jun 2006 : Column 1269

Jeremy Wright (Rugby and Kenilworth) (Con): I want to say a few words in support of new clause 21 and amendment No. 10. As the House is now well aware, new clause 21 makes provision for the court to have an order for compensatory contact available to it as one sanction for the breach of a contact order. The primary advantage of that would be that it is only an order of compensatory contact that can give effect to the original intention of the court. Only when we can put right what has gone wrong will the court be able to see its original order being put into effect. That is important.

The touchstone at the heart of everything that has been said in the course of this debate—rightly so—is that all of us in the House are concerned to make sure that the welfare of the child is the first consideration of all those involved in the court process. If that is so, and assuming that the court process operates as it should and as we would expect it to, the court could come to the conclusion that, in the best interests of the child and the child’s welfare, a certain provision should be made for contact with the non-resident parent. That must self-evidently be the case. The court’s view will be that, for a particular period of time, the child should have contact with the non-resident parent.

The new clause would come into effect only in circumstances in which the contact arrangement that the court had decided was appropriate had not taken effect for one reason or another. That must mean that the child’s best interests are not being served—because contact is not taking place in the way that the court ordered that it should. I agree entirely with the point made by the hon. Member for Luton, South (Margaret Moran) that what is to be avoided is the perception by the child, or anyone else, that parents are being punished, especially when that has a negative impact on the child. However, surely it must be right that, in order to look after the best interests of the child, the court has the option, at the very least, of being able to put the child into the position that it originally intended the child to be in. That is why I support new clause 21.

The idea behind amendment No. 10 was discussed in Committee. The same mistake that was made in Committee has been made again. There should be an addition to the amendment to say that subsection (6)(d) on page 10 of the Bill should also be deleted. The effect of amendment No. 10, as it stands, is to delete subsections (7) and (8) of proposed new section 110 of the Children Act 1989, which would be inserted by clause 5 of the Bill. Subsections (7) and (8) deal with subsection (6)(d) of the proposed new section, which adds “the child concerned” to the list of people who are able to apply for compensation for financial loss. Of course, that is the substantial aspect of the measure that is objectionable to Conservative Members. Subsections (7) and (8) contain qualifications that deal with the child obtaining the leave of the court before making such an application, which will be granted under subsection (8) only if the court is satisfied that the child has the necessary “sufficient understanding” to make the application. It thus follows that amendment No. 10 should also delete subsection (6)(d).

As subsection (6)(d) will remain in the Bill, the problem is straightforward. The touchstone of the entire Bill is that the welfare of the child is the most important
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thing. It does not seem sensible or in accordance with that principle that a child should be encouraged to enter into an arena in which a discussion is held—perhaps a quite acrimonious discussion—about whether financial compensation should be made in one direction or another. Of course, that argument was made in Committee, when the Government said that it is perfectly in order for a child to be involved in the making of a contact order in the first place. That is of course right, but the process is fundamentally different from that involving compensation for financial loss. It is perfectly right to involve a child in decisions about contact because the court recognises that the views of a child about contact are important and thus includes the child as one of the people who can contribute to that process. However, when compensation for financial loss is being considered, blame is being apportioned for something that has gone wrong. That is wholly different in nature from the process of decisions about contact, so it is wholly inappropriate for a child to be involved in such matters.

It is also hard to conceive of a situation in which a child would need to be involved in such a process. It is difficult to envisage a situation in which the financial loss would not be occasioned to one parent or other, both of whom would be able to make an application for compensation for financial loss under proposed new section 110. Amendment No. 10 would thus remove an unnecessary and possibly damaging aspect of that provision, so I commend it to the House.

Mr. Dhanda: On behalf of the House, I should probably take this opportunity to wish England good luck in the World cup match that is being played at the moment. I believe that we are winning one-nil—[Hon. Members: “Hooray!”] Even Scottish Members are pleased about that. Back to business.

The new clause and amendments all deal with compliance with contact orders. They cover several different issues in respect of enforcement and I recognise that they address the matter from more than one perspective. I will thus deal with the issues that they raise in turn.

New clause 21 would provide for courts to order additional contact time as a form of sanction for a breach of a contact order. I understand that the aim of the measure is to address a loss of contact, but I am worried by the notion that contact with a child should be seen as a form of punishment for one of the parents, rather than something that the child needs from the process. We made it clear in Committee that courts already have the power to vary contact orders to provide for more time with one or other parent. In fact, they use that power in response to breaches of contact orders. That is the right way in which such circumstances should be addressed, governed by the paramountcy principle and the welfare checklist. Orders made under new clause 21 would be governed by neither of those and would be far too focused on the conflict between adults, rather than the needs of children.

Tim Loughton: If contact has been thwarted, how often does the Minister think that courts award additional contact time by way of compensation, rather than just replacement contact time, which is hardly anything of a penalty, but a way of shifting the opportunity to have contact?

Mr. Dhanda: In all honesty, I do not have the figures with me. I agree with the right hon. Member for
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Suffolk, Coastal (Mr. Gummer) that more work and research is needed in this area. However, the courts have ample powers at their disposal. There is a sliding scale of compensatory contact, ending in a change of custody. There are provisions already to reverse residence orders. It is interesting to see what can be done.

Mr. Gummer: Cannot the Minister understand that the point is that, unless the parents know that there is a connection between their carrying through the proper decision of the courts and the way in which they will be treated, they will continue as they do at present, which often means frustrating the will of the courts? By not facing this, the Minister is placing many children in a position in which they do not see, as they should see, one of their parents.

Mr. Dhanda: We are facing up to this. It is one reason why the Bill introduces a range of measures, including contact activities. It gives CAFCASS a new and broader role in befriending couples who are going through separation. To take all of that into account, I think that the hon. Gentleman would probably wish to review what he has said and the way in which he said it. The Bill is an effective measure. I think that all Members in this place and the other place have agreed with that during its passage.

Amendment No. 10 is identical to the proposition that was debated in Committee. During that debate, Opposition Members clarified that they had meant to omit paragraph 6(d) from new section 110. Unfortunately, they made the same mistake again. That being so, the effect of amendment No. 10 is to continue to allow the child concerned to apply for a financial compensation order to remove the safeguards that would be attached to the application. However, I will proceed on the basis of the intention, which is to prevent the child from applying for a financial compensation order. I think that that is where the Opposition wish to be.

I sympathise with the concern that children should not become involved in what are essentially pecuniary proceedings, involving usually their parents. I doubt that many children will apply for financial compensation when one of the parties to the proceedings has breached a contact order to which they are subject. That said, there may be a few cases where a child has spent his or her own money to attend contact that did not take place. I imagine that these cases will be few and far between. Nonetheless, they are a possibility, and that is why they have been accounted for.

Amendment No. 16 would require a court that is considering making an enforcement order to make an order for the separate representation of the child, unless satisfied that it is not necessary to do so to safeguard the child’s interests. I do not necessarily agree that that is best done by having separate representation of children in all enforcement proceedings, as amendment No.16 proposes. I have already had discussions with my hon. Friend the Member for Luton, South (Margaret Moran) in private.

The court can already, under existing provisions, consider separate representation of children, not just at
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enforcement stage but throughout Children Act 1989 proceedings. Under rule 9.5 of the family proceedings rules, the court may appoint a guardian for the child if it appears that it is in the best interests of the child for him or her to be made a party to the proceedings. That rule will apply also in respect of enforcement orders.

In April 2004, the president of the family division issued practice direction outlining the circumstances in which the court could consider making a child a party to the proceedings. Those include where the child has a standpoint or an interest that cannot be adequately represented by the other parties, where there is an intractable dispute over contact or residence and where there are serious allegations of physical, sexual or other abuse in relation to that child. The Cardiff university research report draws attention to the disadvantages of separate representation—for example, increased delay, additional stress and confusion to the child, which I think is particularly important and potentially too great a weight of responsibility on what are very young children. Important factors should be weighed up each time a court considers making an order for the separate representation of a child.

8.45 pm

Amendments Nos. 18 and 21 would affect a court’s deliberations in deciding whether someone had a reasonable excuse to breach a contact order. Amendment No. 18 would make the welfare of the child paramount in such decisions. Amendment No. 21 would require the court to consider the child’s wishes and feelings and any concerns about the child’s safety or, indeed, the safety of any member of the family. I am happy to repeat that a reasonable excuse could include a genuine fear of domestic violence, whether to the adult or the child. In so far as ensuring that the courts have sufficient regard to child protection issues, the change proposed is not necessary. Similarly, the court will already take into account the safety of another adult. We should also bear it in mind that not all reasonable excuses involve domestic violence. A medical emergency could be why an order was breached, in which case the considerations in the amendments would not be appropriate.

Amendment No. 11 would require the court, in considering whether to make an enforcement order, to have regard to the principle that the court should act on the presumption that a child’s welfare is best served by reasonable contact with both parents in the absence of a good reason to the contrary. However, the principle is said to be subject to the welfare of the child. In effect, that requires the court to operate subject to a presumption of reasonable contact in deciding whether to make an enforcement order in response to the breach of a contact order. In our view, it would be especially inappropriate to insert a presumption in that context. The original contact order would have already involved the court in considering the welfare of the child as paramount. When presented with enforcement issues, the concern of the court should simply be whether enforcement is necessary and proportionate to secure compliance with a contact order. The matter of what is in the child’s best interests will have been considered already.

I have said already that this is a diverse set of amendments. I hope that I have explained why we
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would have difficulty in accepting them. I urge hon. Members not to press them to a vote.

Tim Loughton: We have had quite a full debate on, as the Minister says, a diverse selection of amendments. I certainly wish to reinforce the points made by my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) and my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright) that the purpose of new clause 21 in particular is to ensure that a parent who might breach a contact order takes that court order seriously and is fully aware of the consequences of not doing so. We have tried to set down a clear and comprehensible penalty that would be understood by a large number of people. It is a form of sanction; it is not about using time with the children as some form of punishment—I went into all the details of why it should not be seen as such—but it is about using a relevant and proportionate deterrent that can be understood by anyone who might seek to breach a contact order without good reason.

The Minister said that the courts already have ample powers to do such things. If they do, they do not use them. That is the point of new clause 21. They do not use contempt of court penalties, other than in a very few cases. Again, incidents of custody being taken away from one parent and awarded to another are few and far between—it is the nuclear option—so many parents think, “What is the worst that can happen to me?”, and it is not very much.

I am mindful, however, that we are approaching the cut-off time for the debates on Report. We still have the important section on mediation to consider, so on the basis that I should like at least my hon. Friend the Member for Basingstoke (Mrs. Miller) to have a look in on proposing new clause 22 on mediation, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 22

Mediation pre-child contact order where the safety of the child is not an issue

‘Before section 8 of the Children Act 1989 (c.41) insert—

“7A Mediation pre-child contact order

(1) The President of the Family Division shall—

(a) keep a register of mediators,

(b) make regulations about the qualifications and conduct required for registration as a mediator under this subsection.

(2) No person may act as a mediator for the purposes of this section unless he is on the register.

(3) Before the court makes an order under section 8 about contact in cases where the safety of the child is not an issue, it must give a direction requiring each party to attend a meeting with a mediator arranged in accordance with the direction for the purpose of—

(a) enabling the mediator to explain the facilities and options open to the parents regarding parent education, parenting plans, dispute resolution and mediation in relation to disputes over child contact, and

(b) enabling parents to resolve the dispute about contact by reaching an agreement for the child to have reasonable contact with both parents.

(4) A party's failure to attend the mediation must stand on their court record and may form part of the basis on which the
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court makes an order under section 8.

(5) The mediator must give a certificate and report to the court when, in his opinion, the parties have—

(a) reached a satisfactory solution, or

(b) have failed to reach a satisfactory solution and it is clear to the mediator that they will not.

In either event, the parties may then continue with any application to the court for an order under section 8.”'.— [Mrs. Maria Miller.]

Brought up, and read the First time.

Mrs. Maria Miller: I beg to move, That the clause be read a Second time.

Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss the following amendments: No. 15, in clause 1, page 2, line 10, at end insert—

‘(5A) Any information or advice given under subsection (5)(b) about making arrangements for contact with a child by means of mediation shall be given by an accredited mediator.'.

No. 14, in page 2, leave out line 14.

Mrs. Miller: Given the lateness of the hour, it is right to say now that we intend to press for a vote after debating this group of amendments. I shall speak to new clause 22 and the two amendments.

New clause 22 deals directly with mediation and I draw the House’s attention to two aspects. First, it will require each party taking part in the proceedings to attend a meeting with a mediator arranged in accordance with the court’s direction and, secondly, failure to attend mediation will stand on the person’s court record. We believe that that is important to ensure that the system works for the best interest of the child. Strong encouragements should be in place to ensure that mediation occurs before the divorce process starts and there should be sanctions if the mediation does not take place.

Mr. Alan Beith (Berwick-upon-Tweed) (LD): I am pleased that the new clause was tabled, because the Select Committee recommended that the parties should be required to attend a mediation meeting. What is not clear—perhaps the hon. Lady could quickly make it clear—is whether the provision goes as far as to say that people have to go through the whole process of mediation. No one who spoke to the Select Committee recommended that. It was felt that compulsorily introducing the parties to the possibility of mediation was as far as the element of compulsion should go.

Mrs. Miller: The right hon. Gentleman makes a good point. The new clause is not intended to make mediation compulsory. It is not possible to do that, but we can make mediation a routine part of accepted practice in court proceedings. If the mediation does not take place, it is right to take note of it. There should be some acknowledgement that mediation is a good process to go through. We tabled the new clause because we believe that it is in the best interests of the child to try to resolve these situations without the acrimony that often pervades court proceedings. Indeed, a strong argument can be made for the beneficial effects of mediation. Agreements
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reached in the shadow of the court can often be pressurised and, if they break down, it is certainly not in the child’s best interests.

The benefits of mediation are well catalogued. Members will recall from debates in Committee that just five hours of mediation can promote sustained contact between absent parents and children many years beyond the separation and divorce. Indeed, the University of Virginia conducted a study into that very aspect and it provides compelling figures. It found that, after 12 years, 30 per cent. of parents who attended mediation were in weekly contact with their children, in comparison with 9 per cent. of those who had been through litigation and not participated in mediation. Those are important figures that I hope will help the House to understand why we feel that mediation should be a routine part of the procedures of divorcing parents who are going through these processes.

Mr. Kidney: The hon. Lady knows from Committee that I strongly support mediation, but the first part of new clause 22 calls for the setting up of a register of mediators. Does she accept that the register already exists? In fact, there are already two registers of accredited mediators, so the new clause is not needed.

Mrs. Miller: That is a matter that the hon. Gentleman has obviously considered in detail in respect of other aspects of the Bill, but I shall confine my remarks to the pertinent point that we need mediation to become part of the process.

I am mindful of the time, so I shall pick up on a few of the points that the Minister detailed in Committee. She set out three main arguments against the inclusion of a mediation clause in the Bill. She said that it would contravene article 6 of the European convention on human rights and remove the right of access to the court, which would make such a provision unacceptable. She then made two judgments that I found interesting—that mediation would delay proceedings rather than always yielding a benefit, and that some people would feel pressurised by the mediation process. I am not sure that those arguments hold water.

The new clause does not make mediation mandatory, so it would not hinder access to the courts. I am not sure that that argument blocks our way. In her remarks in Committee, the Minister was prejudging the appropriateness of mediation. The evidence that I presented earlier shows the long-term benefit not just to the parents but, much more importantly, to the children, who retain longer contact with their parents over many more years.

In conclusion, a quote from a National Family Mediation briefing concisely sums up our feelings on the matter. It states:

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